Tipping Point

Gov. Jan's case against medical marijuana may be about to fall over

It had this 4-inch-tall plastic man perched precariously on his nose, with his arms and legs extended, atop a foot-tall frame balanced on a tabletop base. Players took turns carefully placing little plastic discs on the teetering frame, tipping it back and forth, tilting the little man bit by bit until he fell.

If you topple the man, you're out.

Well, it seems Gov. Jan and her crew may have toppled their medical-marijuana man, and they might be out of the game. A federal judge seemingly ripped the state a new one on Dec. 12 in the first oral arguments in the governor's lawsuit that stalled Arizona's MMJ program.

U.S. District Court Judge Susan Bolton wasn't too happy with the state, essentially telling Assistant Attorney General Lori Davis that her boss, Tom Horne, can't just waltz into federal court to ask if he has a case. Bolton was none too kind in telling Davis that it's the attorney general's job to advise on the legality of state programs, not a federal judge's job.

"She just berated her," said Al Sobol of Scottsdale, who was the first defendant to sign on to the case, and who also sued the state to allow his dispensaries.

In the lawsuit, Brewer prays (literally) that the court will tell her if the state MMJ program provides a haven from federal prosecution, and let her know the rights and duties of plaintiffs and defendants under the program.

Hmmmm. Seems pretty simple, Gov. Jan: It's the defendants' right to open their dispensaries, in accordance with state Department of Health Services regulations and in the spirit of the Arizona Medical Marijuana Act. Lest we forget, rights are not optional. If you have a right to something, it's unequivocal.

Duties are less sure, as we have seen from Gov. Jan's refusal to carry out the MMJ program. It's her duty as governor to carry out the wishes of her constituents, of which I am one, who passed the Arizona Medical Marijuana Act in an open, free and democratic election. I'm sorry you didn't like it when we passed the act, Jan, but now it's your duty to carry it out.

And clearly, the federal court does not intend to tell Brewer what to do, so Bolton threatened to dismiss the lawsuit entirely. Gov. Jan responded a few days later by showing her true colors and saying that she thinks federal law pre-empts state law. In other words, she declined to stand behind the voters of Arizona.

That case ties into other news from just days before the Phoenix court appearance. During a grilling over the failed Fast and Furious gun-tracking adventure, U.S. Rep. Jared Polis, D-Colo., asked U.S. Attorney General Eric Holder why there haven't been any federal MMJ raids in Colorado, while California has had many.

Can Colorado expect raids, Polis asked?

Holder responded that his department is unlikely to prosecute dispensaries in states that regulate MMJ, and where the dispensaries follow state rules.

"Given our limited resources, that would not be an enforcement priority for the Justice Department," Holder said.

So it seems our esteemed U.S. attorney general, Eric the Great, has answered prayers in the state of Arizona's lawsuit: Your fears are unfounded, Gov. Jan. It's highly unlikely anyone will be prosecuted for operating a dispensary in Arizona, if they follow the regulations we have in place.

Sobol thinks it will be months before anyone can open a dispensary, even if the state kicks the chocks out from under the MMJ wheels in the next two weeks (which is unlikely, given that Gov. Jan is now saying she likes federal law more than state law). New business plans and zoning applications would be needed; new leases would need to be arranged.

"All in all, it could be late spring or early summer before those dispensaries are open for business," Sobol said.

In any event, it seems Horne and Gov. Jan's balancing act might be coming to an end, that they have put one too many discs on the frame and toppled their MMJ man. The federal courts aren't likely to save them.